IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

PATRICIA ANN SALYER,

Plaintiff,

 Civil Action 2:12-cv-310

v. Judge Algenon L. Marbley

 Magistrate Judge Elizabeth P. Deavers

 

COMMISSIONER OF SOCIAL SECURITY,

Defendant. 

REPORT AND RECOMMENDATION

Plaintiff, Patricia Ann Salyer, brings this action under 42 U.S.C. § 405(g) for review of a

final decision of the Commissioner of Social Security (“Commissioner”) denying her application

for social security disability insurance benefits under Title II of the Social Security Act. This

matter is before the United States Magistrate Judge for a Report and Recommendation on

Plaintiff’s Statement of Errors (ECF No. 17), the Commissioner’s Memorandum in Opposition

(ECF No. 20), and the administrative record (ECF No. 13). For the reasons that follow, it is

RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM

the Commissioner’s decision. 

I.

A. Background

Plaintiff filed her application for benefits on December 8, 2008, alleging that she has

been disabled since June 1, 2007, at age 32. (R. at 98-99.) She met the financial requirements

for disability insurance benefits eligibility through December 31, 2012. Plaintiff alleges

disability as a result of bipolar disorder, general anxiety disorder, depression, post-traumatic

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stress disorder, back pain from car accidents, severe anger outbursts, fibromyalgia, and drug

abuse in remission. (R. at 114–19, 139.) Plaintiff’s application was denied initially and upon

reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. 

Administrative Law Judge Julia Terry (“ALJ”) held a hearing in November 2010, at which

Plaintiff, represented by counsel, appeared and testified. (R. at 24–61.) George Coleman, III, a

vocational expert (“VE”), also appeared and testified at the hearing. (R. at 44–60.) 

In February 2012, the Appeals Council denied Plaintiff’s request for review and adopted

the ALJ’s decision as the Commissioner’s final decision. (R. at 1-3.) Plaintiff then timely

commenced the instant action. In her Statement of Errors, Plaintiff advances a single contention

of error.1

 Specifically, Plaintiff submits that the ALJ erroneously relied upon the VE’s testimony

in concluding that she could perform her past relevant work and a significant number of other

jobs in the economy.

B. Relevant Hearing Testimony

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Plaintiff also notes that “[o]ne could argue as an Error of Law that the ALJ incorrectly

applied listings of impairment 1.04, 12.04, and 12.06.” (Pl.’s Statement of Errors 2, ECF No.

17.) Plaintiff did not, however, develop this argument or even formally object to the ALJ’s

determination that she did not meet or medically equal one of the listed impairments. The

Undersigned, therefore, deems any such argument waived. See McPherson v. Kelsey, 125 F.3d

989, 995–96 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived. It is not sufficient for a party to

mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its

bones.”) (internal quotation marks and citations omitted); Hollon ex rel. Hollon v. Comm’r of

Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006) (declining to consider claimant’s general objection

to ALJ’s consideration of treating physicians’ opinions “[i]n the absence of any . . . focused

challenge”). 

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The VE testified that Plaintiff had past relevant work history as a staffing coordinator for

a medical staffing company and a patient registrar/coordinator, both performed at the semiskilled, sedentary strength level. (R. at 44.) 

The ALJ posed a series of hypotheticals to the VE regarding a hypothetical individual’s

residual functional capacity. The ALJ first asked the VE to assume an individual of Plaintiff’s

age and with her educational background and work experience. (R. at 45.) This individual could

perform a range of light and sedentary work, with the following limitations: lift and carry ten

pounds frequently and twenty pounds occasionally; standing and walking a total of four out of

eight hours and sitting a total of four out of eight hours; can do all of the posturals occasionally,

but no climbing of ladders, ropes, or scaffolds; no exposure to work hazards; pushing and pulling

is limited to the lifting and carrying weight limitations; no forceful gripping; detailed but not

complex tasks; only occasional and intermittent interactions; and few changes. (R. at 45–46.) 

The VE testified that based upon these limitations, the hypothetical individual could perform

Plaintiff’s past relevant work. The VE added that the individual could also perform other jobs

such as food checker, with 3,439,000 positions available at the national level, and medical fee

clerk, with 493,700 positions available at the national level. (R. at 46–47.) 

The ALJ then modified the hypothetical to include a sit/stand option. The VE testified

that this limitation is a variance, but that it would not affect the ability to do the essential

functions of the foregoing positions. (R. at 47.) According to the VE, if the hypothetical

individual needed to alternate his or her position once per hour for at least five minutes but could

stay at the workstation, that accommodation would be tolerated so long as the essential function

of the positions was not affected. (Id.) 

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The ALJ and Plaintiff’s attorney proceeded to modify the hypothetical to include a

number of additional limitations, such as no continuous use of a keyboard, diminished accuracy

of work, and frequent bathroom breaks. (R. at 48–60.) The VE testified that these additional

restrictions would decrease, and in some cases completely eliminate, the number of available

positions. (Id.) 

C. The Administrative Decision

On January 6, 2011, the ALJ issued a decision finding that Plaintiff was not disabled

within the meaning of the Social Security Act. (R. at 9–18.) The ALJ found that Plaintiff had

the following severe impairments: obesity; fibromyalgia; a lumbar disc protrusion; a history of

bilateral ulnar neuropathy, status post left cubital tunnel decompression; an anxiety-related

disorder with post-traumatic stress disorder; and a depressive disorder. (R. at 11.) She further

found that Plaintiff did not have an impairment or combination of impairments that met or

medically equaled one of the listed impairments. (R. at 12.) She set forth Plaintiff’s residual

functional capacity (“RFC”) as follows: 

After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform a limited range of light and

sedentary work (20 CFR 404.1567(b)). She can lift and carry 20 pounds

occasionally and 10 pounds frequently. She can stand/walk 4 hours in an 8-hour day

and sit for 4 hours in an 8-hour day. She can perform all postural activities

occasionally except she cannot climb ladders, ropes, and scaffolds. Her ability to

push and pull is limited to 20 pounds occasionally and 10 pounds frequently. The

claimant should avoid work hazards and forceful gripping. She can perform detailed

but not complex tasks with only occasional and intermittent interactions with others. 

The claimant should also have few changes in her work environment.

 

(R. at 14.) Relying on the VE’s testimony, the ALJ concluded that Plaintiff was able to perform

her past relevant work as staffing coordinator and patient coordinator as well as other jobs

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existing in the national economy. (R. at 16–17.) She therefore found that Plaintiff was not

disabled. (R. at 17–18.) 

II.

When reviewing a case under the Social Security Act, the Court “must affirm the

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

proper legal standards.’” Ullman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42

U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if

supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial

evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”

Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th

Cir. 1994)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“‘take into account whatever in the record fairly detracts from [the] weight’” of the

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting

Univ. Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.

1997)). “When deciding under 42 U.S.C. § 405(g) whether substantial evidence supports the

ALJ's decision, [the court does] not try the case de novo, resolve conflicts in evidence, or decide

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questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). Finally, even if

the ALJ’s decision meets the substantial evidence standard, “‘a decision of the Commissioner

will not be upheld where the SSA fails to follow its own regulations and where that error

prejudices a claimant on the merits or deprives the claimant of a substantial right.’” Rabbers v.

Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen, 478 F.3d 742, 746 (6th

Cir. 2007)).

III. ANALYSIS

Plaintiff’s single contention of error, namely, that the ALJ erroneously relied upon the

VE’s testimony, is not well taken. Referencing the VE’s testimony in response to the modified

hypothetical, Plaintiff submits that the ALJ could not have based her finding that she is capable

of gainful employment on the VE’s testimony. Plaintiff thus concludes that the ALJ’s decision

is not supported by substantial evidence. 

“In order for a VE’s testimony to constitute substantial evidence that a significant

number of jobs exist, the questions must accurately portray a claimant’s physical and mental

impairments.” Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011); Parks v. Soc. Sec. Admin., 413

F. App’x 856, 865 (6th Cir. 2011) (same). In formulating a hypothetical question, however, an

ALJ is only “‘required to incorporate those limitations accepted as credible by the finder of

fact.’” Carrelli v. Comm’r of Soc. Sec., 390 F. App’x 429, 438 (6th Cir. 2010) (quoting Casey v.

Sec’y of Health & Hum. Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)). 

Here, the ALJ’s original hypothetical to the VE incorporated all of the limitations that

she found credible and supported by the evidence, namely, those restrictions she included in

Plaintiff’s RFC. As set forth above, in response to this initial hypothetical, the VE testified that

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the hypothetical individual could perform Plaintiff’s past relevant work as well as other jobs

available in significant numbers in the economy at the national level. Thus, the VE’s testimony

serves as substantial evidence in support of the ALJ’s determination that Plaintiff could perform

her past relevant work and adapt to a significant number of other jobs in the economy. The VE’s

subsequent testimony (that the jobs he identified in response to the initial hypothetical may be

eliminated as the hypothetical was modified to incorporate additional restrictions) does not

undermine the ALJ’s reliance on the VE’s testimony in response to the initial hypothetical. This

is because the ALJ ultimately did not find those additional restrictions credible, evidenced by the

fact that she did not incorporate them into Plaintiff’s RFC. 

 In sum, the ALJ did not err in relying upon the VE’s testimony. Accordingly, it is

RECOMMENDED that the Court OVERRULE Plaintiff’s sole contention of error. 

IV.

 From a review of the record as a whole, the Undersigned concludes that substantial

evidence supports the ALJ’s decision denying benefits. Accordingly, it is RECOMMENDED

that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner of

Social Security’s decision. 

 PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted)).

Date: July 16, 2013 /s/ Elizabeth A. Preston Deavers 

Elizabeth A. Preston Deavers

United States Magistrate Judge

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